Medical argument fails in the Lords

Posted: 02 Nov 2006 @ 00:00

THE United Kingdom has no obligation under the Human Rights Convention to
provide foreigners indefinitely with medical treatment that is not available in
their own countries, the Appellate Committee of the House of Lords ruled last
week.

It rejected the appeal of an illegal immigrant from Uganda who was
identified only as “N”.

After her claim for asylum was refused, N claimed that her deportation would
be a breach of her rights under Article 3 of the Convention, which is now
incorporated into domestic British law by the Human Rights Act 1998. Article 3
states: “No one shall be subjected to . . . inhuman or degrading treatment.”

N entered the United Kingdom from Entebbe in March 1998 on a false passport.
She fell ill within hours of her arrival, and was admitted to Guy’s Hospital,
where she was diagnosed as HIV-positive with an AIDS-defining illness. As a
result of modern anti-retroviral drugs and skilled medical treatment, including
a prolonged course of chemotherapy, her condition is now stable.

If she continues to have treatment, she could remain well for decades, but
without treatment her life expectancy is no more than a year or two. The
medication she needs is not readily available in Uganda.

The sole legal issue before the House of Lords was whether deporting N to
Uganda would be incompatible with her right under Article 3, and whether
expelling her would be “inhuman treatment”, given Uganda’s lack of medical
resources compared with those available in the UK.

Lord Nicholls of Birkenhead, who presided, said that if N’s were a special
case, there was no doubt that “in one way or another, the pressing humanitarian
considerations of her case would prevail. But in principle the law should seek
to treat like cases alike.” N’s case was “far from unique”, since “the
prevalence of AIDS worldwide, particularly in southern Africa, was a
present-day human tragedy on an immense scale.” The common feature in all such
cases was that the would-be immigrant faced a significantly shortened
expectation of life if deported.

But Article 3 could not be interpreted as requiring states that were
signatories to the Convention to admit and treat AIDS sufferers from all over
the world for the rest of their lives, the House of Lords ruled. Nor, by the
like token, could Article 3 be interpreted as requiring states to give an
extended right to remain to would-be immigrants who had received treatment
while their applications were being considered.

If their applications were refused, the improvement in their medical
condition brought about by that interim medical treatment, and the prospect of
serious or fatal relapse on expulsion, could not make the expulsion inhuman
treatment for the purposes of Article 3.

“No one could fail to be moved by [N’s] situation,” Lord Nicholls said, but
those acting on N’s behalf were seeking to press the obligations arising from
the Convention too far. The problem derived from the disparity of medical
facilities in different countries of the world. Despite that disparity, Lord
Nicholls said, an AIDS sufferer’s need for medical treatment did not, as a
matter of Convention right, entitle him to enter a state and remain there in
order to obtain the treatment that he so desperately needed.

Lord Brown of Eaton-under-Heywood said he “would prefer not to have to make
this decision”, but said he felt “driven to answer no” to the question whether
N’s was a very exceptional case.

All five Law Lords expressed sympathy for N, but agreed that Article 3 did
not give her a legal right to remain in the UK for the purpose of obtaining
medical treatment.

This decision was regarded as a test case that affects several other
would-be immigrants who are in the same situation as N, and the Terrence
Higgins Trust intervened in her case by putting written submissions before the
Law Lords.

The ruling does not mean that N’s deportation will inevitably follow. The
Home Secretary still has a wide discretion about whether or not to deport her.

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